26 Fla. L. Weekly Supp. 330a
Online Reference: FLWSUPP 2604BOUGInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter was not defective for demanding payment for massage services where statute that made massage services not compensable went into effect in year demand letter was submitted and its validity had not yet been upheld in court, and medical provider did not have copy of PIP policy to determine if it provided benefits for such services — PIP statute does not mandate that demand letter state exact amount that insurer will ultimately owe
BOUGIE CENTER FOR CHIROPRACTIC AND ALTERNATIVE MED, Plaintiff/Petitioner v. USAA GENERAL INDEMNITY COMPANY, Defendant /Respondent. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE14010799, Division 70 . June 13, 2018. John D. Fry, Judge.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT BASED ON FAILURE TOCOMPLY WITH STATUTORY CONDITION PRECEDENT
THIS CAUSE CAME before this court on Defendant’s Motion for Summary Judgment based on Plaintiff’s Failure to Comply with a Statutory Condition Precedent, and the Court after reviewing the record, the motions, the submitted case law and orders, the statutes, and the affidavits, it is hereby
ORDERED AND ADJUDGED as follows:Undisputed Facts
1. The Plaintiff filed a PIP suit in Small Claims Court in May of 2014 for treatment that took place in 2013. Suit was filed after the Plaintiff provided the Defendant with a timely statutory pre-suit demand letter.
2. The Defendant did not respond to the demand letter before suit was filed. Instead, the Defendant responded to the demand letter after suit was filed and it never claimed the pre-suit demand letter was defective.
3. In March of 2017, almost three years later, the Defendant filed an affirmative defense, for the first time, alleging the Plaintiff’s pre-suit demand letter was not compliant because:
a) it was addressed to the wronger insurer;
b) it did not take into consideration the mandatory reimbursement amounts §627.736(5)(a)(2);
c) it demanded payment for massage in violation of §627.736(1)(a)(5); and d) it claimed bills that were not timely submitted in violation of §627.736(5)(c).
4. The Defendant then waited until February 28, 2018, almost one year later, to move for Summary Judgment focusing on the alleged non compliant pre-suit demand for payment for massage services only. The hearing was set on April 23. 2018 to take place on May 23, 2018. Essentially, the Defendant waited four (4) years after receiving the Plaintiff’s pre-suit demand letter to seek relief for this alleged non compliant pre-suit demand letter.Analysis
5. Florida Statute §627.736(10) sets forth exactly how a pre-suit demand letter is to be submitted by a medical provider. Subsection (b) states:
The notice must state that it is a “demand letter under s. 627.736” and state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.
Subsection (d) states:
If, within 30 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer.
6. For the purpose of the hearing, the Defendant’s issue is limited to the inclusion of a request for payment for massage services in the demand letter.
7. A strict analysis of this statute makes it clear there is no requirement for the provider that is submitting a pre-suit demand letter to state exactly the amount that the insurer will ultimately owe. It is not for this court to re-write the statute. Had the legislature wanted the pre-suit demand letters to state exactly the amount the insurer would ultimately owe then that language would be in the statute.
8. The only specificity requirement is in subsection (3) which explains an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.
9. When read together, the statement references the ledger which would include the billed amount, the date of treatment, service or accommodation, and the type of benefit claimed to be due. This is made clear in the next sentence that states a completed form satisfying the requirements of paragraph (5)(d) may be used as an itemized statement which is typically a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form.
10. The demand letter statute does not require the provider to specify the exact amount that the insurer will ultimately owe. Nor does the statute state the provider cannot bill the patient or the insurer for an amount more than the statutory fee schedule amount or, for that matter, for massage services. See Tampa Bay Imaging v. Mercury, 22 Fla. L. Weekly Supp. 504a (Fla. Pinellas Cir. Court 2014) where the appellate court opined:
. . .nowhere does the statute mandate that one seeking payment must state the exact amount of PIP benefits owed. It mandates only that the cost of the service provided be specified. The demand letter did so. The insurer is in a better position than the assignee to calculate any PIP benefits available for a claim. (Emphasis added)
11. In this case, the statute that addresses massage reimbursement, §627.736(1)(a)(5), was untested as it went into effect in 2013, it did not make massage an unlawful modality, and the Plaintiff did not have the policy of insurance to determine if the Defendant’s policy would allow for payment for massage services as it is axiomatic that the insurance policy can provide for greater benefits than the statute provides.
12. Therefore, at the time the Plaintiff’s demand was submitted, the Plaintiff would not have known if the Defendant would ultimately be responsible for the massage services at issue and was permitted to seek payment for this service. It would be up to the Defendant to deny the services and for the courts to determine the validity of the new statute. See Sunshine Rehab and Medical v. Progressive, 25 Fla. L. Weekly Supp. 549a (Fla. Miami Dade County Court 2017) which has a similar fact pattern.
13. For the reasons provided herein and discussed on the record, the Defendant’s Motion is hereby denied as the court finds the Plaintiff’s pre-suit demand letter to be proper and legally compliant.
WHEREFORE, for the foregoing reasons as detailed above, it is ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is denied.
